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Kirksey v. Zickefoose

July 12, 2010

ANTHONY KIRKSEY, PETITIONER,
v.
DONNA ZICKEFOOSE, RESPONDENT.



The opinion of the court was delivered by: Kugler, District Judge

FOR PUBLICATION

OPINION

Petitioner Anthony Kirksey filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241, and supporting memorandum, challenging the date set by the Bureau of Prisons ("BOP") for his pre-release custody placement in a residential re-entry center ("RRC"), also known as a community corrections center (hereinafter referred to as "CCC"). The BOP filed an Answer, accompanied by the declarations of Karlton Byrd and Tara Moran, together with several exhibits. Petitioner filed a pro se Traverse. For the reasons explained in this Opinion, the Court will dismiss the Petition.

I. BACKGROUND

Petitioner is incarcerated at FCI Fort Dix in New Jersey, serving a 137-month term of imprisonment imposed on December 6, 2002, by the United States District Court for the Eastern District of Michigan, based on his conviction after trial by jury of possession with intent to distribute cocaine. See United States v. Kirksey, Crim. No. 00-80654 (GER) judgment (E.D. Mich. Dec. 6, 2002). The Petition challenges the BOP's determination to place Petitioner in a CCC for the final six months of his term of incarceration pursuant to the Second Chance Act.

The facts are not in dispute. Petitioner's Case Manager, Karlton Byrd, filed a declaration. (Docket Entry #6-1, pp. 1-5.) Mr. Byrd avers:

In conjunction with making a RRC placement recommendation, I reviewed Petitioner's Central File, including such things as his Presentence Investigation Report, and prior Program Review reports. The above sources indicated that Petitioner had an established residence upon his release. Although he does not have secured employment, he has prior work experience as a financial consultant. Moreover, we took into consideration Petitioner's lengthy criminal history and his institutional adjustment. Specifically, while serving his present sentence, Petitioner has been found to have committed three prohibited acts including, possession of intoxicants, possession of anything authorized (Hydroxycut), and failure to stand count. Lastly, Petitioner previously served a federal sentence for Possession with Intent to Distribute Cocaine and Felon in Possession of a Weapon. Additionally, he violated the terms of his supervised release, and he was returned to federal custody. Petitioner also has past state convictions for Possession of Cocaine and Possession of a Concealed Weapon. Weighing Petitioner's needs and his history and characteristics, as well as public safety, Unit Team determined a RRC placement of 150-180 days would provide Petitioner with the greatest opportunity to successfully reintegrate into society. Following the meeting with the Petitioner, I completed the Residential Re-Entry Center Consideration form, attached as Exhibit 2 . . . .

I am aware that the April 14, 2008 memorandum required Regional Director approval for any RC recommendation beyond six months. That directive, in no way, affected my RRC placement decisions. The Second Chance Act of 2007 made inmates eligible for up to twelve months of RRC time, and my recommendations for RRC placement were made with this time-frame in mind. I understand that the Second Chance Act of 2007 also required that the Bureau create regulations which ensured that placement of an inmate in a community correctional facility would be of sufficient duration to provide the greatest likelihood of successful reintegration into the community. See 18 U.S.C. § 3624(c)(6); 28 C.F.R. 570.22. This is the standard I utilized when determining Petitioner's RRC placement recommendation. (Docket Entry #6-1, pp. 2-4.)

The Residential Re-Entry Center Consideration form, dated June 25, 2009, is attached to the Byrd declaration. (Docket Entry #6-1, p. 21.) The printed form indicates that the Unit team reviewed Petitioner on an individual basis for Residential Re-Entry Center placement and, after considering the resources of the facility contemplated, the nature and circumstances of the offense, the history and characteristics of the prisoner, statement of the sentencing court, pertinent policy statement issued by the U.S. Sentencing Commission, the inmate's need for services, public safety, and the necessity of the BOP to manage its inmate population, as outlined in Program Statement 7310.04, the Unit Team recommends a placement of 150-180 days.*fn1 The printed form states: "This placement recommendation is of sufficient duration to provide the greatest likelihood of successful reintegration into the community." At the bottom of the form, in the space provided for comments, the following handwritten statement appears:

I/M has a stable residence, no employment, prior work history as a financial consultant; skills in Landscaping, sanitation and library work; 150-180 days is appropriate to meet prerelease needs. (Docket Entry #6-1, p. 21.)

Petitioner subsequently submitted a Request for Administrative Remedy to the Warden, in which Petitioner asks to be reconsidered for a 12-month period in a CCC. (Docket Entry #6-2, pp. 28-29.) On August 10, 2009, the Warden denied Petitioner's request and advised him that he had the right to appeal to the Regional Director within 20 calendar days. (Docket Entry #6-2, pp. 30-31.) Petitioner appealed to the Regional Director. (Docket Entry #6-2, pp. 32-33.) On September 29, 2009, J. L. Norwood, Regional Director, denied the appeal and notified Petitioner of his right to appeal within 20 calendar days to the Central Office. (Docket Entry #6-2, p. 34.)

Petitioner asserts in his Reply that, although the above decision is dated September 29, 2009, he did not receive it until October 29, 2009. (Docket Entry #7, p. 12) (On September 29, 2009, the Regional Director dated his response . . . . [H]owever, for some reason, the institutional at FCI Fort Dix Camp did not put it in the mail at the institution to be mailed to the Petitioner until October 29, 2009, see cover receipt dated mailed on 10/29/09"). Attached to the Reply is a one page document containing Petitioner's typed mailing address and the handwritten notation, "mailed @FtD 10/29/09." (Docket Entry 7 at p. 22.) Petitioner asserts that on November 3, 2009, he submitted his Central Office appeal for mailing. (Docket Entry #1-1, pp. 13-14.) Petitioner asserts that on January 12, 2010, he received a Rejection Notice dated December 29, 2009. (Docket Entry #7 at p. 14.) The Rejection Notice, from the Central Office Administrative Remedy Coordinator, states that the appeal was rejected as follows:

Your appeal is untimely. Central Office appeals must be received within 30 days of the Regional Director's response. This time limit includes mail time. Your may resubmit your appeal in proper form within 15 days of the date of this rejection notice. Provide staff verification on BOP letterhead documenting that the untimely filing of this appeal was not your fault. (Docket Entry #7, p. 24.)

Petitioner asserts that "when he took his Rejection Notice to his Unit Team for verification, they had already received the Court's Order to Show Cause and refused to verify the Petitioner Appeal purporting that it was not necessary since the Petitioner had already entered his petition in Court, and that the Court had already issued a Show Cause Order." (Docket Entry #7 at p. 14.)

Petitioner executed the Petition which is before this Court on December 17, 2009. The Clerk received it on December 22, 2009. Petitioner challenges the six-month CCC placement on the following grounds:

Ground One: THE BOP ABUSED IT'S DISCRETION IN DETERMINING THAT THE PETITIONER'S (RRC) PLACEMENT WOULD BE FOR A MAXIMUM OF SIX MONTHS RELYING ON AN INTERNAL BOP MEMORANDUM THAT IS CONTRARY TO THE MANDATE SET FORTH IN THE SECOND CHANCE ACT OF 2007.

The Petitioner . . . is serving a (137) month sentence . . . for Possession W/Intent to Distribute Cocaine. His projected release date via receiving Good Time Conduct Time is March 4, 2011, Relying [principally] on the mandate set forth in the Second Chance Act of 2007, the Petitioner requested of his Unit Team, (e.g. his Case Manager Mr. Karlton Byrd) to consider him for a (12) month placement in (RRC). However, based upon a[n] "internal memorandum" sent down by Assistant Director of Correctional programs Division Joyce K. Conley, and Assistant Director/General Counsel Kathleen M. Keeney, (which in pertinent part, instructs prison officials not to comply with the mandate set forth in the Second Chance Act), the Unit Team arbitrarily and capriciously refused to consider the Petitioner's request to be considered for (12) months in a (RRC). The Unit Team's refusal to consider the Petitioner's request for any amount of time over and above six months in a (RRC) amounted to a[n] abuse of their official discretion.

Ground Two: THE BOP NEGLECTED TO MAKE AN INDIVIDUAL DETERMINATION IN THIS CASE THAT WOULD ENSURE THAT THE PETITIONER'S PLACEMENT WOULD BE "OF SUFFICIENT DURATION TO PROVIDE THE GREATEST LIKELIHOOD OF SUCCESSFUL REINTEGRATION BACK INTO SOCIETY," THEREFORE, THE BOP VIOLATED THE PETITIONER'S [PROCEDURAL] DUE PROCESS.

The Second Chance Act increased the duration of prerelease placement in a Community Custody Center (CCC) from six months to (12) months and [now] requires the BOP to make an individual determination that ensures that the placement be "of sufficient duration to provide the greatest likelihood of a successful reintegration into the community." 18 U.S.C. § 3624(c)(6)(c) (April 9, 2008). The Petitioner asserts that that did not take place in this case. In the instant case, the Petitioner showed up at his semi-annual Team review. Not a word was either mentioned or discussed in regards to him being placed in an (RRC). The meeting merely consisted of the recitation of the normal "ritual incantations" Team members generally ask, i.e. Have you paid your fine, are you enrolled in any programs, do you have any questions, O.K. sign here. Subsequent to the Petitioner having [formal] Team meeting, It must of occurred to the Petitioner's Case Manager (Mr. Byrd) that he Petitioner was within the time frame in which a discussion on preparation for release should have taken place. That night, (which by the way was Mr. Byrd's late night) he called the Petitioner over the loud speaker to report to his office where he proceeded to question him in regards to the address that he would be residing at upon being released. After that he informed the Petitioner that he would be recommending (6) months of halfway house. The Petitioner thereafter requested that he be considered to (12) months in light of the Second Chance Act, and the length of time that he had been incarcerated. Mr. Byrd then informed the Petitioner that he felt (6) months would be sufficient and that was what the Team was going to recommend. It must be noted that the Second Chance Act limits the BOP's discretion in determining the placement duration [not to exceed 12 months] to provide the greatest likelihood of a successful reintegration back into the community. 18 U.S.C. § 3624(c)(6). No individual determination was made in this case in violation of the Petitioner's [procedural] Due Process. (Docket Entry #1-3, Petitioner's Claims at pp. 1-3.)

By Order entered January 12, 2010, this Court ordered Respondents to file and serve an answer and documents related to Petitioner's claims. On February 23, 2010, Respondents filed an Answer, together with declarations of Karlton Byrd and Tara Moran, and attached documents. Respondents argue:

(A) PETITIONER HAS NO CONSTITUTIONAL OR STATUTORY RIGHT TO PRE-RELEASE PLACEMENT IN A RRC ...


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